Citation Nr: 18146864 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 17-15 429 DATE: November 1, 2018 ORDER Service connection for human immunodeficiency virus (HIV) infection and residuals is denied. FINDING OF FACT HIV infection and residuals did not have onset during active service and was not caused by service. CONCLUSION OF LAW The criteria for service connection for HIV infection and residuals have not been met. 38 U.S.C. §§ 1110, 1131, 1116, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.309, 3.310 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1981 to May 1985. As background, in July 2015 the Veteran filed an application for service connection for HIV infection and residuals. In a January 2016 rating decision, the Regional office (RO) denied the claim. In February 2016, the Veteran submitted an application to reopen the previous denied claim accompanied by supporting private medical records. The Veteran did not appeal the rating decision but new evidence relating to the HIV claim was received within one year of its issuance. Thus, the January 2016 rating decision did not become final. In an April 2016 rating decision, the RO denied reopening the claim for service connection for HIV infection and residuals. In August 2016, the Veteran submitted a notice of disagreement with the April 2016 rating decision. A statement of the case was issued in January 2017 and the Veteran perfected his appeal with a VA Form 9 in March 2017. Again, as the January 2016 rating decision that denied service connection for HIV infection and residuals was not final, the Board finds that by submitting this substantive appeal the Veteran perfected his appeal with regard to service connection for HIV infection and residuals. Thus, the issue is characterized as an initial service connection claim as reflected on the title page. The record shows that the Veteran received 38 U.S.C. § 5103(a)-complaint notice in this case. The duty to assist has also been met. In this regard, although he has not received a VA examination in connection with the claim, such an examination or opinion is not necessary. The Veteran has not identified any event, injury or disease in service, but rather basis his claim on the length of a latency period. As no service event, injury or disease has been established, a VA examination or opinion is not necessary. 1. Entitlement to service connection for HIV infection and residuals. The Veteran contends that his current HIV infection and residuals are due to his active duty service. He has not identified any service risk factors or events, but rather contends that HIV has a 7-year manifestation period, which would place the onset of the disease in service. The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of HIV, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of HIV began during service or is otherwise related to service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d). Service treatment records are silent for any reference to HIV. On the May 1985 separation examination, clinical evaluations were normal. The post-service evidence shows that the Veteran has HIV, but all references to the disorder date the diagnosis as in 1990. The Veteran himself does not contend that he was diagnosed with HIV prior to 1990, which was approximately five years after service. A January 2016 HIV disability benefits questionnaire (DBQ), completed by a private physician, indicates that a diagnosis of HIV was provided in May 1990. The private physician did not provide a medical opinion on the relationship between HIV and service. The Veteran submitted post-service private medical records documenting ongoing treatment for HIV and residuals. Notably, these records also report that the Veteran was diagnosed with an HIV infection in 1990. As indicated above, the service treatment records themselves are silent for any reference to HIV. The Veteran does not contend that there was any event, injury or disease in service responsible for his HIV, or that the HIV was diagnosed in service or at any point prior to 1990. None of the medical evidence suggests that the Veteran’s HIV originated in service. The only evidence linking the Veteran’s HIV to service is the Veteran’s lay assertions. Again, he does not allege any particular event, injury or disease in service leading to disease, but rather asserts that HIV has a 7-year latency period, implying that the HIV must have originated in service. Notably, however, the Veteran has not submitted any evidence supportive of his assertion concerning the latency period for HIV. Nor is there any indication that he has the type of education, experience or expertise to opine in HIV latency periods. The Board points out that even if HIV can have a latency period of up to 7 years, the Veteran has not provided any evidence suggesting that the HIV latency period cannot be less than 7 years, less than 5 years, or even less than a year. In short, in the absence of any identified service event or medical evidence supporting the Veteran’s belief concerning HIV latency periods, there is no competent or credible evidence of HIV in service or until many years later, and no competent or credible evidence linking the Veteran’s HIV to service. Even assuming that HIV can have a 7-year latency period, there is no competent evidence suggesting that the latency period for HIV is limited 7 years, or that the latency period is even limited to close in time to when the disease was diagnosed. Merely because it is possible that the Veteran’s service overlapped with the potential latency period of HIV in this case does not suffice to place the matter in equipoise. (Continued on the next page)   In light of the above, the Board finds that the preponderance of the evidence is against service connection for HIV infection and associated residuals. Thus, there is no reasonable doubt to be resolved in the Veteran’s favor, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Amanda Baker, Associate Counsel